Today the U.S. Court of Appeals for the Sixth Circuit held that none of the plaintiffs in American Civil Liberties Union v. National Security Agency have standing to challenge the program and dismissed the case. Judge Batchelder wrote the opinion for the court. Judge Gibbons delivered a separate concurring opinion, and Judge Gilman dissented. I can virtually guarantee that this is not the last we have heard of this case.

UPDATE: From Judge Batchelder's opinion for the court:

in crafting their declaratory judgment action, the plaintiffs have attempted (unsuccessfully) to navigate the obstacles to stating a justiciable claim. By refraining from communications (i.e., the potentially harmful conduct), the plaintiffs have negated any possibility that the NSA will ever actually intercept their communications and thereby avoided the anticipated harm — this is typical of declaratory judgment and perfectly permissible. But, by proposing only injuries that result from this refusal to engage in communications (e.g., the inability to conduct their professions without added burden and expense), they attempt to supplant an insufficient, speculative injury with an injury that appears sufficiently imminent and concrete, but is only incidental to the alleged wrong (i.e., the NSA's conduct) — this is atypical and, as will be discussed, impermissible.

Therefore, the injury that would support a declaratory judgment action (i.e., the anticipated interception of communications resulting in harm to the contacts) is too speculative, and the injury that is imminent and concrete (i.e., the burden on professional performance) does not support a declaratory judgment action.

From Judge Gibbons concurring opinion:

The disposition of all of the plaintiffs' claims depends upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the TSP. Without this evidence, on a motion for summary judgment, the plaintiffs cannot establish standing for any of their claims, constitutional or statutory. For this reason, I do not reach the myriad other standing and merits issues, the complexity of which is ably demonstrated by Judge Batchelder's and Judge Gilman's very thoughtful opinions, and I therefore concur in the judgment only.

And from Judge Gilman's dissent:

My colleagues conclude that the plaintiffs have not established standing to bring their challenge to the Bush Administration's so-called Terrorist Surveillance Program (TSP). A fundamental disagreement exists between the two of them and myself on what is required to show standing and whether any of the plaintiffs have met that requirement. Because of that disagreement, I respectfully dissent. Moreover, I would affirm the judgment of the district court because I am persuaded that the TSP as originally implemented violated the Foreign Intelligence Surveillance Act of 1978 (FISA).

And:

The closest question in this case, in my opinion, is whether the plaintiffs have the standing to sue. Once past that hurdle, however, the rest gets progressively easier. Mootness is not a problem because of the government's position that it retains the right to opt out of the FISA regime whenever it chooses. Its AUMF and inherent-authority arguments are weak in light of existing precedent and the rules of statutory construction. Finally, when faced with the clear wording of FISA and Title III that these statutes provide the "exclusive means" for the government to engage in electronic surveillance within the United States for foreign intelligence purposes, the conclusion becomes inescapable that the TSP was unlawful. I would therefore affirm the judgment of the district court.

Reading the op, it appears that the plaintiffs didn't challenge the "state secrets privilege," which the feds used to keep them from discovery of the facts that might give them particular standing. See fn. 3.

Does anyone else feel that there are a substantial number of federal judges who use the standing doctrine to avoid deciding hard cases?

Dude, that's what it's for. Especially where you define "hard cases" as "those unfavorable to the government."

Requiring proof of a "case or controversy" is one thing, but judicially-invented standing doctrine should not be used as a cloak for executive malfeasance -- the origins, indeed, of the "state secrets" doctrine (covering up a gov't screwup).

Francis, one might reasonably conclude that issues that affect large numbers of people (or everyone) are better decided by democratic processes than by a bevy of Platonic guardians. The courts might be better reserved for individual wrongs on which the political process has difficulty focusing.

wm13: Francis, one might reasonably conclude that issues that affect large numbers of people (or everyone) are better decided by democratic processes than by a bevy of Platonic guardians. The courts might be better reserved for individual wrongs on which the political process has difficulty focusing.

So the trick is to hurt many people to avoid judicial review? I'm sure glad the Supreme Court judges in Brown saw things differently.

Anderson, the president is elected and the Congress can take action regarding the TSP if it wants. Why would the federal courts be a particularly good vehicle for resolving these issues?

Zathras, you aren't really paying any attention to what I am saying. Obviously Brown involved a disadvantaged minority, and a readily identifiable one. Quite the opposite of the sort of case that creates standing problems. You might try reading Carolene Products and Ely's "Democracy and Distrust" to gain a better understanding of the issues (though I don't want to be thought of as endorsing Ely's overall theory of judicial review).

I'm curious -- In your view, is this decision correct on the law or incorrect on the law? You mention the likelihood this outcome would happen, and the policy consequences of it (which you find troubling). Any thoughts on which of the opinions most accurately and faithfully applies the existing binding precedents? That's the most important question to me, at least. Although of course others need not share that interest. And of course, if you'd rather not respond, no problem.

I doubt that very many were really surprised at the outcome of this appeal. The judge ignored, and didn't even really address, the body of precedent running strongly against her. I don't see this as even a close call. And, no, I don't see the current Supreme Court accepting Cert. in order to determine that the mere fear that someone could potentially be harmed is sufficient for standing. That would open the floodgates to litigation in any number of other areas

Whatever one thinks of standing doctrine (and there are good reasons for cynicism), I don't think anyone could honestly read Judge Batchelder's opinion and conclude that laziness played any part in the decisionmaking process.

"how exactly was the TSP subject to decision by "democratic processes"?"

We had elections in 2004 (before the disclosure of this particular program, but I'd argue that the voters knew quite well what they were getting when they reelected Bush) and 2006, we're having another one in 2008. If the voters dislike this program, they have ample opportunity to vote for congressmen, senators, and a president who would get rid of it.

Standing doctrine is sufficiently fact-bound and flexible that both the opinion and dissent are defensible.

As a practical matter--and standing is at essence a practical doctrine--it seems to me that the injury that results from unauthorized searches is one that is well-recognized by the law. Moreover, the question of whether warrantless surveillance violates the Fourth Amendment and/or FISA presents a relatively narrow legal question for resolution for the courts. So I don't see how it would be such a big deal for the courts to take up the issue on the merits.

As a further practical observation, I'm glad this was resolved on standing -- and I hope the Supreme Court doesn't take it up on the merits. My guess is that the outcome would likely be a 5-4 decision resulting in a reduction of Fourth Amendment protections, based on indulgence of the executive branch's unchallenged assertion that "national security" requires such a program.

This is the correct, though legal-watcher disappointing result. There is no way the likes of Christopher Hitchens, et. al. have standing, but, as Orin and Jack Balkin and others have pointed out, they clearly violated the law (FISA).

The miraculous thing is that all the Bush administration had to do was to get (secret) warrants from the (secret) FISA courts who never deny anything, and they would be fine.

This is the other problem with standing: even if the plaintiffs got the relief they sought (compliance with FISA) their claimed harm (chill on their overseas communications) would not be redressed because the FISA courts themselves provide for secret warrants. The plaintiffs being secretly surveilled are in the same position they would have been if secret warrants had been issued.

And, no, I don't see the current Supreme Court accepting Cert. in order to determine that the mere fear that someone could potentially be harmed is sufficient for standing.

Well, considering that Scalia considered the mere possibility that George W. Bush might not win if all the votes in Florida were counted sufficient to not merely grant Cert, but shut down the recount being conducted in accordance with state law under the supervision of a state judge, I'm not sure that concepts like "standing" and "potential harm" have any discernable boundaries.

And given the consistency with which Rhenquist and O'Conner's replacements have sided with the three remaining judges who comprised the Filthy Five, the current Supremes are likely to turn questions of standing and potential harm into a "crapshoot"---with the emphasis on the first syllable of that word.

We had elections in 2004 (before the disclosure of this particular program, but I'd argue that the voters knew quite well what they were getting when they reelected Bush) and 2006, we're having another one in 2008. If the voters dislike this program, they have ample opportunity to vote for congressmen, senators, and a president who would get rid of it.

This is silly for many reasons. Voters were supposed to be aware of the fact that Bush was secretly violating the FISA law because he secretly received legal opinions saying that the Constitution allowed him to do so? While defending the PATRIOT ACT on the campaign trail, Bush expressly said that all wiretaps required warrants. Was the public supposed to "know" that he was lying?

And what, pray tell, is the point of electing new congressman and senators when the law already says that the wiretaps are illegal? What are they going to do, underline it?

This is the other problem with standing: even if the plaintiffs got the relief they sought (compliance with FISA) their claimed harm (chill on their overseas communications) would not be redressed because the FISA courts themselves provide for secret warrants. The plaintiffs being secretly surveilled are in the same position they would have been if secret warrants had been issued.

I'm not so sure this is true. The injury, in whatever form (chilling, inability to do their job, etc.), is caused by extrajudicial monitoring. The FISA court may not provide a great deal of comfort to some, but oversight of the program by the FISA court would at least insure minimal standards are being applied.

I wonder if the desenting Judge would find it so easy to let citizens sue for HARM from gun laws? I doubt it. Look how long it took a case like Parker to get through. And of coarse some hate that THOSE PEOPLE had been seen to been harmed and have standing. Oh, Mercy save us all!!

Without weighing in on the merits here, it seems strange to me that a government program would be referred to by a Circuit Judge as belonging to the sitting president's administration ("the Bush Administration’s so-called Terrorist Surveillance Program (TSP)" from J. Gilman's dissent.) I'm pretty sure CJ.Warren didn't refer to the "(insert name of Topeka School Board President)'s segregation program)."

The miraculous thing is that all the Bush administration had to do was to get (secret) warrants from the (secret) FISA courts who never deny anything, and they would be fine.

This is the other problem with standing: even if the plaintiffs got the relief they sought (compliance with FISA) their claimed harm (chill on their overseas communications) would not be redressed because the FISA courts themselves provide for secret warrants. The plaintiffs being secretly surveilled are in the same position they would have been if secret warrants had been issued.

The FISA court did deny a significant number of warrant applications (a few percent of the total IIRC, without going back and looking up numbers). I don't think it was any more a rubber-stamp than the average judge reviewing warrant applications.

I agree with your second point, which Judge Anna Diggs Taylor tried to evade by ruling that this conduct violated the First Amendment - although since a warrant cannot excuse a speech-chilling First Amendment violation, her opinion would have meant that getting warrants still wouldn't have been sufficient to permit these wiretaps.

it's stalinesque to monitor calls made to terrorists who mean to harm this country by people within this country? you would think one would be ashamed to be in communication with terrorists-somehow, we have devolved to the point that it is now considered a matter of pride. well, one man's terrorist is another man's freedom fighter-isn't that the saying?

I think many of the commentators here have a myopic view of the Constitution. The Constitution is more than just a document listing civil rights. Surprisingingly it is also a document that lists the structure of government and the responsiblities of is officers. Now sometimes these civil rights and and official responsibilites conflict. That is when the courts need to apply a "reasonable" standard to make sure that both interests are safeguarded and one doesn't unreasonably override the other. The balance the courts have struck is that:

Executive Branch should be excused from securing a warrant only when “the object of the search or the surveillance is a foreign power, its agents or collaborators,” and “the surveillance is conducted ‘primarily’ for foreign intelligence reasons.”

Congress did incoprporate those principles into law with FISA but the only court which has specifically analyzed the affect of FISA on the President's authoritiy ruled that FISA could only enhance the President's inherent article III authority, it couldn't restrict it:

In sum, we think that the FISA as passed by Congress in 1978 clearly did not preclude or limit the government’s use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution.

And of course:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

So for those of you worried that the Government (because it is not just this adminstration) has suspended your civil liberties and is going to start rounding you up, you need only worry if you are "agents or collaborators" of a foreign power. And rightly so.

What I found fascinating was the Opinion by Judge Batchelder that the TSP might possibly slide right between FISA and Title III. I, for one, had assumed that if the surveillance didn't qualify as electronic communications under FISA, it would be controlled by Title III. But the parsing of the two acts by this judge suggested that, at least according to her, that wasn't true.

18 U.S.C. 2511(f) reads:

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

The judge read this as being divided into separate parts, the most notable here being the first:

Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978,

In other words, if the communications involve foreign intelligence operations from international or foreign communications, Title III does not apply. The rest of this last quoted section is combined with the other by "or", indicating that in either case, Title III doesn't apply.

Then we come to FISA. The relevant section would likely be 50 U.S.C. 1801(f)(2) which states that:

(f) “Electronic surveillance” means—
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

But the plaintiffs could not prove that it applied:

This argument fails upon recognition that “electronic surveillance” has a very particular, detailed meaning under FISA — a legal definition that requires careful consideration of numerous factors such as the types of communications acquired, the location of the parties to the acquired communications, the location where the acquisition occurred, the location of any surveillance device, and the reasonableness of the parties’ expectation of privacy. See 50 U.S.C. § 1801(f).40 The plaintiffs have not shown, and cannot show, that the NSA’s surveillance activities include the sort of conduct that would satisfy FISA’s definition of “electronic surveillance,” and the present record does not demonstrate that the NSA’s conduct falls within FISA’s definitions.

It's not Stalinesque to monitor terrorist phone calls. It is Stalinesque for the government to listen in to any and all phone calls in the country in order to hopefully catch a terrorist call or two. Call me naive, but what good is having a country as great as ours if we take even the slightest step toward becoming a police state when our enemies threaten us? To me, there are the same principles underlying this program as there were underlying the Japanese internment camps and the Palmer Raids.

Is it disingenuous for a judge to hold no standing, but also conclude that if there were standing, the plaintiff would probably win? Does this ever happen?

It happens routinely in the class action context -- the court concludes that even though the complaint states a claim on behalf of somebody, the putative class representative him or herself isn't a member of the class and therefore has no standing to bring the claim.

I'm not so sure this is true. The injury, in whatever form (chilling, inability to do their job, etc.), is caused by extrajudicial monitoring. The FISA court may not provide a great deal of comfort to some, but oversight of the program by the FISA court would at least insure minimal standards are being applied.

I think though that this is too imprecise. The point was that those worried about being surveilled by the program couldn't distinguish between their fear of being surveilled under FISA warrant or w/o such. Yes, maybe their fear was a bit more, because of the possibility of an unwarranted surveillance, but how much more? It was also quite possible that they could be subject to warranted surveillance given the stipulated facts - that those on the other end of the calls were precisely those whom FISA warrants would be procured to surveil.

I think though that this is too imprecise. The point was that those worried about being surveilled by the program couldn't distinguish between their fear of being surveilled under FISA warrant or w/o such.

What language do you get this from? I must admit I didn't read all three opinions that closely. I don't deny you're correct, but I would disagree with that principle were it the one upon which the Court rested. To me, at least, there is significantly more comfort in being surveilled by a program that is subject to judicial oversight than one that is not. Maybe I'm in the minority on that position, but it's the bright line I would take.

As an aside, why is Batchelder's opinion first? Is it strictly because she's alphabetically first, since Gibbons joined only in the judgment?

Per the Constitution, I would be willing to sign on as one of the two required witnesses charging the ACLU with treason, for giving aid and comfort to the enemy. Same for the NYT, for that matter. How 'bout them apples, samuil?

In your view, is this decision correct on the law or incorrect on the law? You mention the likelihood this outcome would happen, and the policy consequences of it (which you find troubling).

The outcome was likely because of the peculiar situation of the plaintiffs -- the gov't conceded it was spying but invoked "state secrets" to deny plaintiffs any evidence that would support their particularized claims. Under the highly, um, "flexible" law on standing, that left plenty of room to find against plaintiffs.

Neither Batchelder's opinion nor Gilman's seems to me in the least hackish or lame; but standing doctrine is in no small part a matter of judicial policy, and I disagree with Batchelder on the policy issue.

"I think though that this is too imprecise. The point was that those worried about being surveilled by the program couldn't distinguish between their fear of being surveilled under FISA warrant or w/o such. Yes, maybe their fear was a bit more, because of the possibility of an unwarranted surveillance, but how much more? It was also quite possible that they could be subject to warranted surveillance given the stipulated facts - that those on the other end of the calls were precisely those whom FISA warrants would be procured to surveil."

Under this standard, why would someone for who there was probable cause for a crime existing, but the government unjustifiably failed to seek a warrant, have any standing? It seems like the legal difference you are noting (and I realize this is your interpretation of the court's opinion, and not necessarily your own), is not one that courts have found historically relevant.

Smokey, why stop with them? Over 70% of Americans oppose the war. The fact of that clearly gives aid and comfort to the enemies, no?

Now comes the interesting constitutional issue - are 70% of Americans guilty of treason, or just Gallup and Pew, who discover and report this information? Or maybe there's a middle ground here - just the people who responded (incorrectly) to the survey?

I wonder if the government needs a warrant to subpoena Gallup and Pew to find out the culprits.

we have an enemy plotting to kill as many of us as possible and people in this country apparently assisting them-the mighty intellects here, however, call those who question the wisdom of aiding them in their attempts "trolls".

Under this standard, why would someone for who there was probable cause for a crime existing, but the government unjustifiably failed to seek a warrant, have any standing? It seems like the legal difference you are noting (and I realize this is your interpretation of the court's opinion, and not necessarily your own), is not one that courts have found historically relevant.

I think that the difference here is that you are positing actual surveillance. In the present case, we are talking possible surveillance. Sure, the probability that international communications between the plaintiffs and al Qaeda, et al. might be intercepted may be higher if the government is relying on both warranted and unwarranted interceptions, instead of just warranted, but how much more? It is impossible to quantify, esp. given the State Secret privilege.

The original standing was based on 1st Amdt. chilling. But the chilling can't be quantified since it is also possible that any interception is warranted. Remember, on the other end of the calls are most likely the type of people whom FISA warrants were designed to surveil. So, given that it is also known that the NSA is getting warrants for calls with this class of people, the plaintiffs can't really say that there wouldn't have been as much, or at least almost as much, chilling, if warrants were always being acquired, as opposed to sometimes.

What good is discovery going to do if the entire program is protected by the State Secrets Doctrine? That's the problem... But yes, as a general rule, I believe that the Court may authorize discovery to determine standing. Isn't that in Steel Co.?

Here's hoping that the Plaintiffs don't seek en banc review in the Sixth Circuit or apply for certiorari. To this point, the only judges to address the merits of the program (Taylor and Gilman) have found Fourth Amendment violations.

It would be altogether unsurprising if the Republican appointees to the Sixth Circuit found a way to uphold the program, however disingenuous they would have to be in order to get there. As for the Supreme Court's Lickspittle Five, this case could be just the vehicle for writing an expansive view of executive power into the Constitution. Who knows, these five might even sua sponte overrule Youngstown Sheet &Tube.

Why are people such idiots about secrecy issues? If the government is allowed to violate the constitution in SECRET then it makes no difference that they say they will only use this power against terrorists because YOU'LL NEVER KNOW IF THEY ARE LYING. Why is that so hard to understand?

It's the same thing for doing away with habeus. You can claim all you want that it's a special circumstance used only for terrorists, but the whole point is that without it we have no way of knowing if who it was used on was a terrorist in the first place.

one might ask why are people such idiots about war and terrorism issues? after all, I think we would have gone after people in communication with our enemy in prior wars-what has changed other than an apparent preference for what side one backs in a war?

BillS: "It is Stalinesque for the government to listen in to any and all phone calls in the country in order to hopefully catch a terrorist call or two."

Can you tell us what you mean by "listen in?" In the past this would mean someone was wearing headphones and actually using their ears to monitor the call. In the context of today's modern packet switched newtorks what do you mean by "listen in?"?

I went back and looked up (probably now-outdated) numbers. While almost none were rejected outright, basically 1% of them were modified by the FISA court before issuance. Each modification is a rejection of some, but not all, of what the government was asking for, so I stand by my assertion that the FISA court is not a rubber stamp.

But the thing I still don't get is how are you (the government) going to get a conviction on somebody who happens to be in the US, or even a US citizen, if the evidence you have against them was obtained without a warrant. it seems to me the courts are inviting a slippery slope, possibly even covering said slope with mazola or something. if i were the government, i think i would go the extra mile to get the necessary warrants in order to make sure the convictions stick. why is the court seeming to invite trials of potentially dangerous terrahists whereing the primary prosecution evidence has been obtained without a warrant?

Often the point isn't to get a conviction, but to gather intelligence about people so their plans to blow us up can be stopped. If intelligence from a conversation between A and B tells us that C is planning a bombing, then resources can be deployed to prevent C from carrying out his plan.

Exactly right. The problem with the legal eager beavers is that they do not understand that everything does not have to end up in the courtroom. This is the very problem the CIA and FBI had prior to 9/11.

I went back and looked up (probably now-outdated) numbers. While almost none were rejected outright, basically 1% of them were modified by the FISA court before issuance. Each modification is a rejection of some, but not all, of what the government was asking for, so I stand by my assertion that the FISA court is not a rubber stamp.

That only seems to be half of the information needed to determine whether or not the FISA court is really a rubber stamp. If only (that) 1% of applications needed modification, then it's not a rubber stamp, but if more than 1% needed modification/rejection but didn't receive it, then it'd seem fair in my mind to call it a rubber stamp. And I guess if much less than that 1% really needed the modifications asked for, then it's tingodding.

Basically, knowing they did modify, or even flat-out reject, 1% of applications isn't all that helpful without also knowing how many they should have modified or rejected.

Especially since, depending on how you look at it, 1% isn't all that an impressive a total. You know, "anything less than at least a 10% rejection rate is a rubber-stamp".